■:u^t^i^i,'-'(,u /^y^J^j 



\^cr 



E 713 
.R82 
Copy 1 



;?^.'^,^ 



THE NATION'S RELATIONS TO ITS 
ISLAND POSSESSIONS. 



SPEECH 



HON. JONATHAN ROSS, 



OF VERMOiNT, 



SENATE OF THE UNITED STATES, 



Tuesday, January 23, 1900. 






WASHINGTOM. 
1900. 



V 



H 7/3 



l^ 



*Ja*' u. 



SPEECH 

Ob- 

HON. JONATHAN KOSS 



OUTLYIXO DEPENDENCIES. 

Mr. ROSS. :Mr. President, I ask leave to call up the resolutions 
sul)initted bv me on the 18th instant. 

The PRESIDING OFFICER. The Chair lays before the Senate 
the resolutions, which will be read. 

The Secretary read the resolutions submitted by Mr. Ross on 
the 18th instant, as follows: 

Ri-sohrd, That the provisions of the Constitntiou do not, unaided by act of 
Congress, extend over Puerto Rico and the Philippine Islands. 

licsolvcil. That by the reeent treaty with Sp;un the rmted States take the 
sovereignty over Puerto Uioo and over the Philippine Islands muUr the duty 
to use and exercise it for the general welfare and hit,'hest interest of the 
people of the United States and the inhabitants of the islands, unrestrained 
by the provisions of the Constitution; and over Cuba, under the duty to ex- 
ercise it for the ]>a(iflcation of the island. , ,. , ^ , , ^, 1 ,,. , 

Resolved, That the sucossful discharge of this duty demands the establish- 
ment of a separate department of Government to take charge of all uutlving 
dependencies of the United States, and the passage of a general law making 
appointments therein nonpolitical. 

Mr. ROSS. Mr. President, I think it is entirely evident that all 
Senators do not take the same view of our relations to the Philip- 
pine Islands, Puerto Rico, and our other dependencies. I shall 
present my own view. 

I have always thought it wiser to give attention to present con- 
ditions, and to the discharge of present duties, than to dwell upon 
transactions passed and closed, in an attempt to criticise or to find 
fault, or to point out how they might have been more wisely con- 
ducted and have brought better supposed results. Early I learned 
that criticism and fault-finding could be set up on very limited 
capital, and that the "better supposed results "' are more imaginary 
than real. In forecastinghis supposed results the critic rarely fore- 
sees, or can foresee, the new and important factors which would lie 
brought into the problem if the changes demanded by his after-date 
criticism had been made. Allow me, therefore, to engage the atten- 
tion of the Senate briefly in considering what I deem to be present 
conditions and duties. 

First, then, let us inquire if the Constitution of the United States, 
ex j)roprio vigore, unaided by treaty or act of Congress, extends 
to and covers the inhabitants of the territories acquired by the 
United States. 

This is an important question for consideration and determma- 
tion, especiallv by every Congressman, whose action may help de- 
termine the laws which shall govern the inhabitants of such 
territories. 

3971 S 



By the recent treaty witli Spain sovereitrnty is ceded to the 
I'nited States over Puerto Rico and the Philii^piue Islands with 
this provision: 

Tlio civil and political status of the native inliabitants of tlio territories 
hereby ceded to the United States shall be determined by Congress. 

Cuba, over which Spain relinquishes sovereignty and title, the 
treaty leaves without any declaration in regard to the s/o^(s of 
her inliabitants, or the rights of Congress further than to say 
that, upon its evacuation by Spain, the island is to bo occupied 
by tlie United States, and while such occupation shall continue 
the United States- 
will nKsnme and discliarco the obligations that may, nnder international law, 
result from the fact of its occupation, for the protection of life and property. 

I do not propose in this connection to discuss what the rela- 
tions of the United States to these islands are, further than to 
observe that the ceding power has imjjosed no conditions nor 
reserved any rights detined and secured by the Constitution to 
the inhabitants of those islands. This distinguishes this treaty 
from all others hitherto made by the United States by which she 
has acquired territory occupied by inhabitants. Tlie treaty of 
18U3, for the cession of Louisiana, provides in Article III that — 

The inhabitants of the ceded territory shall be incorporated in the Union 
of the United States, and admitted as soon as possible, acoonlinLr to the 
principles of the Federal Constitution, to the enjoyment of all the rights, 
advantages, and immunities of the citizens of the U'aited States; and in the 
meantime they shall bo maintained and protected in the free enjoyment of 
their liberty, property, and the religion which they profess. 

The treaty of 1819. by which Florida was ceded to the United 
States, in Article VII has a provision of similar legal import. So 
have the treaties by which New Mexico, Utah, California, etc., 
were acquired in 18-18 and 1833, contained in Articles VIII and IX 
of the treaty of 1818 and brought forward into the treaty of lSo3 
by Article V. The treaty of 18G7, by which Alaska was acquired, 
has no provision for the incorporation of the Territory into the 
Union as a State or States. It divides the inhabitants into two 
chisses. It provides that they may return to Russia within three 
years, and of those who do not return says: 

But if they should prefer to remain in the ceded territory they, with tho 
excoi)tion<jf tl:o unci vili/.cd native tribes, shall be admitted to the enjoyment 
of all the rights, advantages, and immunities of citizens of the United States 
and sliall be m.nintainod and protected in tho free enjojinent of their liberty, 
property, and religion. The uncivilized tribes shall bo subject to such reeii- 
latiuus as the tlnited States may, from time to time, adopt in regard to abo- 
riginal tribes of that country. 

It is thusmanifest that in every treaty by which tho UnitedStates 
has acquired inhabited territory prior to the late treaty with Spain 
the ceding power lias inserted a provision that iho inhabitants, 
except uncivilized tril)es, shall bo admitted to the enjoyment of 
all the rights, advantages, and immunities of citizens of tho 
United Slates, and all. except that by which Ala.ska wasae(iuired, 
contain the further provi.sion that they .'^iiall in diao time, to bo 
dotermincd by Congress, bo admitted as a State or States into the 
Union. 

sirrRKMr: rouiir dkcision.s. 

It will be important to keep tho provisions of these treaties in 

mind, espicially wlien wo examine the decisions of tho Supreme 

Court in regard to llio coustiluti-mal rights of the inhabitants of 

thc.-fo territories. In his opinion in Tho American and Oceanic 

3U71 



Insuraiu-e Cos. rs. 3."»r> Bu'.ps of Cotton. Cantor, cliiiiiiant. Chief 
Jiistico Marsball cjuotes the sixth avticlo of the treaty ceding 
Florida, which roads: 

The inhiibitiuits of the t.Tritorios which His Catholic Mft.i'psty cedes to the 
diiti'd StatOM liy this tii'iit y slmll bo iiK'nrjioniti'il into thoUniouof tho United 
Statt"* as soon as nmy be consistent witli the iirincijilcs of tho Federal Con- 
stitution and admitted to tlie eiijovinent of all the priviliRes, rights, and im- 
imuiities of tho citizens of tlie L'uited States. ]t is iinnecossary to inquire 
whether this is not theirconditiou independent of stipulation. They do not. 
however. i>articii)ate in i)olitical power; they do not share in government till 
Florida becomes a Btato. ( 1 Peters, M^. ) 

The Northwest Territory and other territories ceded by sepa- 
rate States to the United States, when under the Articles of Con- 
federation or the Constitution, were ceded under a pledge from 
Congress in regard to tlieir use and rights. Chief Justice Taney 
says in his opinion in the Dred Scott case: 

By resolution passed October 10. 1780, Congrress pledged itself that, if the 
lands were ceded as rccoinim luled, they shou!<l be disposed of for tho com- 
mon benefit of the I'nited States, to be settled iind formed into distinct re- 
publican States, which shall bec-ome members ot tiie Federal Union, and have 
tho same rights of sovereignty and freedom and independence as the other 
States. 

This pledge acted upon is of eriual force as the provision of a 
treat}', especially under the ordinance of 1787. 

These treaties and this resolution include all the territories of 
the United States, except that of Oregon, which came by dis- 
covery and occupation— in regard to which 1 know of no decision 
of the United States Supreme Court on the question under con- 
sideration—and, except that acquired by the annexation of Texas 
and Hawaii, until we come to the recent treaty with Spain. 

THE SCOPE OF THE THEATY-MAKI-NG rOWEll. 

By Article VI of the Constitution: 

All treaties made under the authority of the United States are made the 
supreme law of tho land. 

Of the treaty-making power the Supreme Court, in Geofrey vs. 
Riggs (13o U.S., 258), speaking by Mr. Justice Field, says: 

The ti-eaty power as expressed in the Con.stitution is in terms unlimited 
except by tho.so restraints found in that instrument against the action of the 
Government, or of its departments, and those arising from the nature of tho 
Government itself and that of the States; it would not be contended that it 
extends so far as to authorize what the Constitution forbids, or a change in 
tho character of the Government, or in that of the States, or the cession of 
any portion of the latter without its consent. Fort Leavenworth R. R. Co. vs. 
Lowe ilUU. S.,.'):J5,5H). But with these exceptions, it is not perceived that 
there is any limit to the questions which can be ad.iudged touching any mat- 
ter which is properly the subject of negotiation with a foreign countrj-. Ware 
vs. Hvlton (3 U. S., 19U) : Chirac r.s. Chirac ( 1.5 U. S. . I-' Wheaton. »'."/» i ; Hauenstine 
i'.<!. Sanborn (10()U. S., 483) ; Droit d" Aubaino (.3 Ops. Atty. Gen., 417) ; People rs. 
Gerko (5 Col., 381). 

It will not be claimed that the provisions of these treaties giving 
the inhabitants of the territories the rights, privileges, and im- 
munities of citizens of the United States lie without the scope of 
the treaty-making power. It is a generally admitted proposition 
that the ceding power may properly require such a provision in 
its treaty granting its sovereignty over a territory, and that the 
power accepting the grant becomes solemnly bound tliereby. 

DISTRICT OF COH'.MUIA. 

Inasmuch as one or more of the decisions of the United Stat-83 
Supreme Court is in regard to the con.stitutional rights of the 
inhabitants of the District of Columbia, it is proper to remark 
3971 



E 



that the territorv. now inchided in the District, when the Constitu- 
tiou was ailoptetl constituted parts of tlie States of Virginia and 
Maryland, and before being ceded, had become subject to the 
Cnstitution. Bv the cession the territory of the District was not 
talcen from under the operation of the Constitution. If so, the 
rocess by which it was accomplished is unlcnown to me. Nor 
^ave 1 seen anv suggestion by anyone that any change in its rela- 
tion in this respect was made by its cession by the States to the 
United States. 

HOW PECISIO.NS OF TUE UNITED STATES SUPREME COURT SHOULD BE COX- 

BlUEKED. 

These observations are necessary for the proper understanding 
of the language used by various judges of the United States 
Supreme Court in their opinions touching the constitutional rights 
of the inhabitants of tho District of Columbia and of these Terri- 
tories; for, as aptlv and pertinently said by Chief Justice Mai-shall 
in Cohen r. Virginia (6 Wheaton, 2(34, 39'J): 

It 13 a maxim not to be disregarded that general expressions in every 
opinion arc to bo taken in connection with tho case in which these espres- 
810U8 are used. If they go beyond the case, they may be respected, but ought 
not to control tho judgment iu a .subseciiicnt suit when the very point is pro- 
Beiited for judgment. Tho reason for this maxim is obvious. The question 
actually before tlio court is investigated with care and considered in its full 
extent. Other princii)les which may serve to illustrate it are considered in 
their relatiim to tho caso decided, but their possible bearing upon all other 
cases is seldom completely investigated. 

Keeping this caution by the eminent Chief Justice in mind, I 
fail to lind anv decision of the Supreme Court which fairly in- 
dicates that the Constitution of the United States, unaided by 
Congi-essional legislation or hy treaty, ex pro2)rio vigore extends 
to the territories accjuired by the United States. There are ex- 
pressions in several of tho opinions which would indicate that 
Buch might be the view of the writer. Such expressions were 
unnecessary for the decision. In no case which I have been able 
to find is this point actually considered and decided. In every 
case in which the court has decided that the party was entitled to 
bo accorded the rights, privileges, and immunities secured by the 
Const it ution, such rights, privileges, and immunities had been con- 
ferred by the States from which tho territory was ceded, as in the 
caso of the District of Columbia, or by the treaty. by which the 
territory was ceded to the United States; and freiiuently the rights 
thtiB secured had been confirmed by the act of Congress conferring 
territorial govenimoiit. The resolutions and ]n-oceedings by which 
Boveral Statts ceded territory to the United Slates, including the 
Northwest Territory, were in legal effect treaties and of like bind- 
ing force. 

The decisions of the United States Supreme Court most gon- 
crallv relied upon to support tho view that tho Constitution, un- 
aided by act of Congress or treaty, extends ex pi-aprio ri(jore to 
bU territories may, for convenient consideration, bo divided into 
three cla.y.ses: 

( 1 ) Tho right of trial by jury. 

(li) Revenue, or the apportionment of direct taxes. 

(8) Citizou.ship. 

THE luoiiT oi' TiuAi, nv .imv. 

Of the first class are Callan vs. Wilson (lt?7 U. S., T) 10) : American 

Publ shing Companyr.'*. Fi.slicr (l(i<5 U. S.. HM); Springville vs. 

TliomnH (ion U.S.. "JUT); Tliomp.son vs. Utah (170 U. S.,yi:!). and 

•omo <,therB noted iu these decisions. Callan vs. Wilson clearly 

'4un 



holds that a citizen of the District of Columbia has constitutional 
ri£?ht to trial by jury when chargetl witli a crime. Although not 
fiiUy stated as a ground for the decision, the case was correctly 
decided if, as I think the fact is, the Constitution was extended over 
the District while included in the States of Maryland and Virginia, 
and was never subsequently withdrav\'n. The decision of tho 
American Publishing Company vs. Fisher was turned upon the 
point taken, that the act of tho Territory which authorized a ver- 
dict rendered on the concurrence of nine or more members of the 
jury contravened the act under which Utah was coristituted a 
Territory. It leaves undecided whether the seventh amendment 
applies. IMr. Justice Brewer summarizes the decisions on this 
point as follows: 

Whether tho seventh amondiuent of tho Constitution of the United States, 
which provides tliat "in suits at common law, whore the value in controversy 
shall exceed twentv dollars, the right of trial 1 >y Jiny sliall 1 >v> preserved," oper- 
ates, ex proprh) vi<}ori\ to invalidate this statute may be a niatter of dispute. 
In Webster vn. Reid, il Howard, 4:37, au act of the loKislature of Iowa dispensing 
with a Jury in a certain class of common-law ai'tious was held void. While 
in the opinion, on page 401), the seventh amendment was ciuotod, it was also 
said: "The organic law of the Territory of Iowa, l;>y express iirovision and 
by reference, extends the laws of tho United States, including the ordinance 
of 178V, over the Territory, as far as thev are applicable; " and the ordinance 
of 1787, article :.',in terms provided that "the inhabitants of said Territory 
shall be entitled to the bcnelit of the writ of httheas corpus and of trial by 
jury." So the validity mav have been adjudged by reason of conflict with 
Congressional legislation. In Reynolds vs. United States (!I8 U. S., IW, lof ), it 
was said, in reference to a criminal case coming from the Territory of Ltan, 
that "bv tho Constitution of the United States (Amendment VI) tho accused 
was entitled to a trial by an impartial jury." Both of these cases were 
quoted in Callan vs. Wilson (l;.'7 U. S., 5fO),as authorities to sustain tho ruling 
that the provisions of the Constitution of the United States relating to trial 
by jury are in force in tho District of Columbia. On tho other hand, m 
Mormau Church vs. United States (136 U. S., I, 44 ), it was said by Mr. Justice 
Bradley, speaking for the court: "Doubtless Congress, in legislating for the 
Territories, would bo subject to those fundamental limitations in iavor of 
personal rights which are formulated in the Constitution and its amend- 
ments; but'these limitations would exist ratlier by inference and the gen- 
eral spirit of the Constitution, from which (y)ngress derives all its powers, 
than bv any express and direct application of its i>rovisions."' And in McAl- 
lister vs. United States (141 U. S., 174), it is held that the constitutional pro- 
vision in respect to the tenor of judicial offices did not apply to Territorial 
judges. 

If what has been said in regard to the force of the treaties by 
which these territories v/ere ceded is sound, the cases were all 
correctly decided, and justified, as is done in some of them, classi- 
fying the District of Columbia and Territories with States as pro- 
tected by this provision of the Constitution. 

There can be no doubt that the treaty with Mexico secured to 
the inhabitants of the territory ceded the rights, privileges, and 
immunities secured by the Constitution. By its terms Mexicans 
who should prefer to remain in the territory could retain the title 
and rights of Mexican citizens or acquire those of citizens of the 
United States. If they remained w^ithout election for a year after 
the cession of the territory, they— 

should bo considered to have elected to become citizens of the United 
States * * * shall be incorporated into tho Union of the L nited States, 
and be admitted at the projjor time to the enjoyment of all the rights of citi- 
zens of the United States, according to the principles of tho Constitution, and 
shall be protected in the free enjoyment of their liberty and property. 

These teruis of the treatv were accepted by the United States. 

and secured to the inhabitants of the territory the rights secured 

to citizens of the United States by the Constitution. Trial by 

common-law jury was one of these rights. The fact that such 

3971 



8 

toiTitory was secnretl the riglits, immunities, and pri\ileLCOs of 
tho Constitution, and was in preparation, under the treaty, for 
becoming a State, justified tlio remark of Mr. Justice Bradley in 
Mormon Church vs. United States: 

Doulitlosa ConffTPss, in Icgislat'nt: for the Territories, would ho subject to 
thf>f fuiKlaincntrtl limitations iu favor of personal rijfhts which are tormu- 
Litoil in tho Constitution and its aniondmonts; but those liiuitations would 
esist rather by inference and tho poneral spirit of the Constitution, from 
which Conpress derives all its powers, than by any express or direct applica- 
tion of its provisions. 

These rights were secured by the treaty. Unquestionably these 
principles impliedly should govern the legislation of Congress 
regarding the inhabitants of a Territory which was being prepared 
to take its place among the States of the Union. 

The case of Springviller. Thomas is made to rest upon the ground 
staled in American Publishing Company v. Fisher. Thompson v. 
Utah was properly decided upon the ground that the act upon 
which the plaintiff in error was tried was passed after the crime 
charged was committed, and unconstitutional, as an ex x>ost facto 
law. an immunity secured to him by the Constitution. None of 
these decisions, read in the light of the treaties or the law of the 
land extending over tho District of Columbia and the Territories, 
uphold the claim that the Constitution, ex proprio vigore, pre- 
vailed over them. It is quite evident that this must be the ])rin- 
ciple which controls when In re Ross (140 U. S.,45'3) is considered. 
He was a seaman on an American vessel. He claimed to be a 
British subject. While the vessel was in harbor in Japan he com- 
mitted thereon a murder. By an act of Congress, passed agree- 
ably to a treaty between the United States and Japan, he could be 
tried by a consular court in Japan, consisting of the American 
consul and four associates. The court and its proceedings were 
regular, if the act of Congress was constitutional. He was tried, 
con\icted, and sentenced to be executed. On the trial he prop- 
erly raised the points that he was entitled by the Constitution to 
be indicted by a grand jury and tried by a common-law jury, and 
that the consular court, as constituted, had no jurisdiction to try 
him. 

If the act establishing the consular court was unconstitutional 
when challenged by a citizen of the United States, it was so when 
challenged by him', though a British subject. By shipping as a 
Beuman on a American ve.sscl, he became entitled to bo tried by 
valid laws applicable to the trial of an American citizen. His 
sentience wa« comniuted by the President to imprisonment for 
life in tli<- p'-nitentiaiy at Albany, New York. After remaining 
incarceraf t d fi ir a time, he brought liahcas coi'jnt.t, claiming that his 
incjirceration was unlawful on tho grounds claimed by him on the 
trial. It wa.s held that tho American vessel, though on the high 
seas, common t<j all nations, was American territory, and tinder 
tho treaty tin- consular court hail jurisdication to try him, and 
his conviction wa-* lawful. I can see no escape from the conclu- 
tion that thiHdi-cision establishes that Congress has plenary power, 
unroHtricted by the Constitution, iu legislating for outside terri- 
tories. 

IIKVKMK OK TIIU ArrOUTION.MEXT OF DinECT TAXES. 

Of the second class I have found but one decision which is 
claimed to hold that tho Constitution, of its own unaided vigor, 
extends itfielf over the District of Columbia and Territories located 



outside the States, andtliatisLowghboronshrs. Blake (5 Whoaton, 
317). It was decided in 1820, Chief Justice Marshall delivering 
the opinion. The question for decision was whether an act of 
Congress including the District of Columbia in an apportionment 
of a direct tax, according to the census of the States and District, 
was constitutional. It was held constitutional. It could not be 
otherwise held if tho-District was then under the Constitution. 
The reasoning of Chief Justice Marshall, as I understand it, is 
that it was immaterial whether the District was under the pro- 
visions of the Constitution. In substance he reasons that if in 
levying a direct tax Congress should omit a State or not appor- 
tion the tax among the States according to the census, as pre- 
scribed in the Constitution, the tax would be unlawfully levied 
and void; that the same effect would not result if a Territory was 
omitted, because the Constitution does not recjuire direct taxes in 
the Territories to be so apportioned; that in the Territories _ Con- 
gi-ess exercises plenary power in levying direct taxes, and in the 
exercise of this power could apportion the tax as required by the 
Constitution among the States. I think the decision and reason- 
ing of the eminent Chief Justice, properly understood, does not 
Bupport the doctrine, but the reverse. 

CITIZENSHIP. 

In considering citizenship I shall not discuss the Slaughterhouse 
cases and some others which are upheld, because the acts of the 
States complained of as impinging upon the rights of citizens 
secured by the Constitution were held to be valid within the 
police power of the State, although some expressions in the opin- 
ions may give the careless reader the impression that the Consti- 
tution extends over the District of Columbia and the Territories, 
unaided by act of Congress or by treaty, for, if any such ex- 
pressions can fairly be held to have such force, they were clearly 
outside the points considered and decided, and are no more than 
dicta. In United States vs. Wang Kim Ark (1G9 U. S., 649) it is 
held that the defendant in error, born of Chinese parents in Cali- 
fornia while his parents were residing there, but were not and 
could not, under the laws of the United States, be naturalized, 
became a citizen of the United States under the fourteenth 
amendment. The case was decided by a divided court after very 
full consideration. The majority of the judges hold that the 
common-law doctrine in regard to birth in a country, from for- 
eign parents residing there, entitles the child to the protection of 
the country, and for that reason he owes to such country allegi- 
ance, and becomes a citizen under the terms of the amendment. 

There is force in the dissenting views of Chief Justice Fuller 
and Mr. Justice Harlan, holding that the birth must be from 
parents who, by the laws of the country, could have become citi- 
zens by naturalization to give the child such a status. In the dis- 
cussion in the opinion representing the views of the court, some 
expressions are used which carry the impression that such a birth 
in the Territories, or wherever the United States has jurisdiction, 
renders the child a citizen. But no such (juestion was before the 
court, nor does the opinion profess to consider such a question. 
The question involved may bo correctly decided, and yet docs not 
touch the doctrine that the Constitution extends to the District of 
Columbia and Territories of its own unaided vigor. These are the 
strongest representative cases claimed to indicate tliat the Con- 
stitution has such unaided power. 
3971 



10 

THE CU.VSTIXn lO.V. 

Opposed to its having such power arc the nature and language of 
the Constitution and many decisions of the Supremo Court. The 
Constitution is tliat of a representative government of the people. 
It was formulated and adopted by repi-esentatives selected by and 
from the people of the different States to form a common govern- 
ment for themselves under the name of the United States. This 
name is used throughout the instrument to mean the States 
united, or their combined power. The Constitution commences 
with — 

We. the people of the United States, in order to form a more perfect 
union, • • * and secure the blessings of liberty to ourselves and our pos- 
terity, do ordain and establish this Constitution for the United States of 
America. 

I'nited States as here used evidently is a synonym for the union 
of the States which should adopt it. The people of the States an- 
nounced in advance that, through their representatives, they form 
the Constitution, among other things to secure the blessings of 
liberty to themselves and their posterity, and announced no other 
purjinse. It is almost invariably held that the acts and laws en- 
acted V)y the legal representatives of any municii)ality bind only 
the inhabitants of that municipality. Such acts and laws have, 
and are intended to have, no extraterritorial effect or jurisdic- 
tion. If any extraterritorial .i^r'sdiction for such laws is in- 
tended, it must bo clearly expressed, or the contrary will bo pre- 
Bume'l. The several articles of the Constitution, and the first ten 
amendments adopted nearly contemporarily, establish the three 
departments of the Government, provide for the manner of their 
establishment, define their respective powers, some both affirma- 
tively and negatively; define what power the State.^ yield to the 
General Government, and what they reserve, including its powers 
over the citizens of the several States, the relation of the States, 
and of the citizens of the .several States, to each other, and to the 
General Government; how and by whom the (Constitution can 
bcamended; iirovide for the adinis.sion of newStates; and specify 
the jiower of the (-Jovernment over the Territory and other prop- 
erty of the United States. 

Not a sentence contained in the original articles, nor the first 
ten amendments, adopted nearly conteuiporaneously, more clearly 
to specify tlio scope and limitation of the powers named in the 
original articles, indicates that the.so provisions are applied to or 
bind anyone except the citizens of the several States, who, through 
their cho.sen representatives, framed and adopted them and are 
given power to anntil and amiMid them. Nor is there any such 
h'-ntence in the eleventh and twelfth amendments. When tlio 
tliirtcenth am'-ndmcnt was fram-d and adopted it was therein 
clearly e.\pr('K>ed that its provisions should extend, iiot only to 
the States tiien included in the I'nion, or throughout the United 
States, but to any place subject to tl.eir jurisdiction. 

It is Bignin<ant that this claus(> should be inserted into this 
amendment, and be nowhere found in the original articles, nor in 
tlif preceding nor succeeding amendments, if of tluMr own vigor 
they extend wln-rt-ver the I'nited States exerci.ses jurisdiction. 
K'<pecinl!y significant is the insertion of this lu-ovision into this 
Hineinimcnt, and its omission from the fourteeiitii ;uid fifteenth 
nniindiMonts following ho soon thereafter and formulated by some 
of the Bamo eminent constitutional lawyers. It clearly sh.ows 



11 

that tho men who forinuhiteil it did not think that the other pro- 
visions of the Constitution, as then amonded, extended of their 
own vigor into tho territories. In continuation of this view is 
the fact, that up to that time all treaties coding territories to tho 
United States contained carefully expressed provisions giving 
immediately its citizens the rights, privileges, and immimities of 
citizens of the United States, or providing that such rights, priv- 
ileges, and immunities should speedily be conferred and tho Ter- 
ritories formed into States. The Commissioners wlio formulated 
those treaties, the Presidents who submitted them to the Senate, 
the Senators, or some of them at least, who ratified them, were 
eminent constitutional lawyers, and some of them engaged in 
formulating and discussing the original Constitution. It can 
hardly be conceived as possible that this lino of action should 
have been pursued for so many years, if the Constitution, of its 
own unaided force, extends to every territory acquired by the 
United States. 

TERRITORIES AND TERRITORTAIj COURTS. 

Such was not the view of Daniel Webster in 1828 when arguing 
American Insurance Company vs. Canter (1 Peters, 511) . He then 
said: 

What is Florida? It ia no part of the United States. How can it be? How 
Is it represented? Do the laws of tho United States reach Florida? Not unless 
by particular urovisions. The territory and all within it are to be governed 
by the acquiring power, except whore there are reservations by treaty. By 
the law of England, when possession is taken of territories, tho King, jure 
corojite, has the power of legislation until Parliament shall interfere. Con- 



_^ ^ ^ .. lavo 

,^^^Jany thing; she might liaVe refused the right of trial by jury, and refused 
a legislature. She has given a legislature to bo exercised at her will; and a 

fovernment of a mixed nature, in which she has endeavored to distinguish 
etween State and United States jurisdiction, anticipating the future erec- 
tion of the territory into a State. Does the law establishing tho court at Key 
West eome within tho restrictions of the Constitution of tho Uuited States? 
If the Constitution does not extend over this territory, tho law cannot bo in- 
consistent with the national Constitution. 

Such was not the view of Chief Justice Marshall, who delivered 
the opinion in that case and therein said: 

These courts, then, are not constitutional courts, in which the judicial 



created in virtue of the gener „ ^-- , ,, , 

ernment, or in virtue of that clause which enables Congress to make all^need- 
ful rules and regulations respecting tho territory belonging to ihe United 
States. The jurisdiction with which they are invested is not a part of that 
judicial power which is defined in tho Third Article of the Constitution, but 
IS conferred by Congress in tho execution of tho.so gcner.al powers which 
that body possesses over tho Territories of tho United States. Although ad- 
miralty jurisdiction can bo exercised in tho States in those courts only which 
are established in pursuance of the Tliird Article of the Constitution, the 
same limitation docs not extend to tho Territories. In legislating for them 
Congress exercises the combined powers of tho general and of tho State 
government. 

Nor was such the view of Chief Justice Chase, as shown by an 
extract from his opinion in Clinton vs. Englebrecht (13 Wallace, 
434), as follows: 

There is no supremo court of tho United States, nor is there any district 
courtof the United States in the seuseof tho Constitution, in tlie Territory of 
Utah. The judges are not appointed for the same terms, nor is t lie jurisdiction 
which they exorcise part ot tho judicial power conferred by the Constitution 
of the General Government. Tho courts are the legislative courts of the Ter- 
ritories, created in virtue of that clause which authorizen Congr<'ss to make 
all needful rules and regulations respecting tho Territories beluuging to the 
United States. 

3on 



12 

Tlio same doctrine has been adhered to by the Supreme Court, 
as shown by the opinion in McAllister cs. United States (111 U. S. , 
171), where the casts on the subject are reviewed. The courts 
brouj;ht under consideration in this line of cases are denominated 
lejjislative courts, courts established by Con{<ress in the exercise 
of its jilenary ])0wtr over the Territories, or the combined power 
of the General Government and of the States, as it is sometimes 
expre.ssed; courts which do not derive their authority from the 
judicial power of the United States, vested in the Supreme Court 
and inferior courts ordained agreeably to Article III of the Con- 
stitution, but derive their power from an act of Congress, even 
when it embraces the identical subject-matter — maritime— over 
which the Supreme Court is given jurisdiction by Article III of 
the Constitution. These cases are distinguishable from tho^ethat 
hold that the citizen of the District of Columbia, and of the Ter- 
ritories, is entitled to be tried by a common-law jury. No person 
has the constitutional right to be tried by a particular court, if 
the court which tries him accords all the rights, privileges, and 
immunities secured to him by the Constitution. 

CITIZLNS OF DISTRICT OF COLUMBIA AND OF TERRITORIES. 

Of like tendency and force are the decisions of the Supreme 
Court holding that a citizen of the District of Columbia or of a 
Territory can not sue in the United States courts a citizen of a 
State, nor be sued in such courts by such citizen of a State, because 
the Constitution gives such courts jurisdiction only of suits be- 
tween citizens of different States; that the District of Columbia 
or a Territory is not a State within the terms of the Constitution, 
whatever it may be internationally. (Hepburn rs.Ellezy, 2 Crauch, 
41"): New Orleans r.s. Winter, 1 Wheaton.Ol; Barney r.f. Baltimore, 
G Wallace, 280. ) These cases establish, if they establish anything, 
that tlie term State in the Constitution means one of the States of 
the Union and no other municipality. By parity of reasoning. 
I'nited States, when used in that instrument, should mean the 
States united and nothing more, unless clearly asserted, as in the 
thirteenth amendment. 

DRED SCOTT DECISION. 

The Dred Scott decision is not opposed to these views. Chief 
Justice Taney, as furnishing the foundation for holding that the 
plaintilT in error was not entitled to sue in the United States 
courts, defines who are included as citizens of the United States 
within the terms of the Constitution. He says: 

Till- wonls '•pooplo of tlio I'nitfd States" iind "citi/.ons"' nro sviionvnious 

l.riuM. iiml iiic.iti tlifMinu- thing. Tln-y U>tli describe the jioliticjd body who, 

ii' '■'.nliiuf to our n-iiublicau institutions, U>rm the sovoroiK'nty and hold tho 

1 ■ • '■ ■■' '' '-oiidni't tlio (.ovtTnincnt t)iroui,'h tlu'ir ronrosi-n'tatives. They 

• tuniiHarly call the " soviTei^'n jieoiile," ana every c-itizen is ojus 

■■, and n constituent member ol this soveroiu'nf y." Tho (juestion 

I wlietluT tho cliuss of persons (nevfrm-.si described in the iilea of 

nijMise a |iortioii nf this jieople and are const it nent menioer.sof 

iity. We think thoy are not ancl nro not inelnded, and wove not 

i .; 1 e Ml' luded. under tho word citizens ol tho United .States. 

Tliis portion of the decision has not been criticised nor over- 
ruled to my knowledge. Under this dehnition of citizen he mi:st 
have a part in the exercise of the sovereignty. Otiier i)ortions of 
tho opinion, if not overruled, have been ignored, cspici/iliy that 
portion wJiich holds tliat tho clause in tlie Constitution in regard 
to llio power of Congress over territories ai)plies only to tho terri- 
tories belonging to the United Stales when the Constitution was 
adojded, or such as might beac(iuired to be developed into States. 
null 



13 

The case clearly holds that until the adoption of the Fourteenth 
Amendment there might be persons born and residint^ within the 
United states, subject to its powers and havin;? a ri{,'ht to demand 
its protection, who are not citizens because not entitled to partici- 
pate in the sovereignty. That amendment enlarges this definition 
only to the extent of all persons born in the United States and 
subject to its jurisdiction. The term United States here must 
mean the territory of the States united to form the National Gov- 
ernment. The words "and subject to its jurisdiction" are not 
■words of enlargement, as in the Thirteenth Amendment, but words 
of limitation of the class born in the United States, and were in- 
serted to exclude children born of parents who were residing in 
the United States as the representatives of other nations. 

DECISIONS IN REGARD TO THE RIGHTS OF IXDIAXS. 

Of like legal tendency and effect are the decisions of the Supreme 
Court in regard to the rights of Indians, as shown in United States 
vs. Rogers, i Howard, 507; United States vs. Kagama, 118 U. S., 
375; Elk vs. "Wilkins, 113 U.S., 91, and other cases relating to the 
relations of the United States to the Indians. In the last case 
named the plaintiff was an Indian, born among the tribe to which 
he belonged. He sued the defendant for refusing to enroll him as 
a voter in the city of Omaha. He alleged that he was an Indian, 
born within the United States; that for more than a year prior to 
the grievances complained of he had severed his tribal relations 
to the Indian tribes, and fully and completely surrendered himself 
to the jurisdiction of the United States; that he was a citizen of 
the United States by virtue of the fourteenth amendment to the 
Constitution, entitled to all the rights and privileges of the citizens 
of the United States, and had been a bona Jide resident of the State 
and city for a period of time more than long enough to entitle him 
to vote. 

These allegations were admitted by demurrer. It was held 
that he was not a citizen of the United States by virtue of the 
fourteenth amendment, because born with his tribe, and there- 
fore owed subordinate allegiance to it. The peculiar relations of 
the United States to Indians were discussed, and statutes shown 
which allowed them to be naturalized. On this branch of the case, 
and respecting the allegation that he was a citizen, it was held that 
this allegation and the allegation that he had severed his tribal 
relations and completely surrendered himself to the jurisdiction 
of the United States and of the State, were not sufficient to enable 
him to recover, unless accompanied, as they were not, by the 
further allegation that the United States or State had accepted 
his surrender, had naturalized him, or recognized him as a citizen. 

United States v. Kagama establishes the nght of this nation to 
govern the Indians by acts of Congress instead of by treaties while 
they maintain their tribal relations on an Indian reservation within 
the limits of a State; that, because within the geographical 
limits of the United States, they are necessarily subject to the laws 
which Congress may enact for their protection and for the protec- 
tion of people with whom they come in contact; that the States 
have no such power as long as they maintain their tri bal relations; 
that they owe no allegiance to the State, and the State gives them 
no protection. The opinion recognizes and discus^^es the peculiar 
relations of the Government to the Indians: that Indians, while 
maintaining tribal relations, owe a subordinate allegiance to the 
tribe and a paramount allegiance to this Government. 
3971 



14 

It woxilil seem that iu rot<aril to citizenship paramount allej?i- 
ance ouLjht to control. Sovereignty and alU'Lciance are interde- 
pendent. Sovereignty is the paramount i)0\ver wliich governs 
and protects. From protection arises subjection, or duty to obey, 
or alUtriance. It is difficult to discover any satisfactory reason 
distinguishing this case from In re Wang Ark Kim. except that 
the latter was born within a State, and therefore within the opera- 
tion of the Fourteenth Amendment of the Constitution, and 
Kagama. on an Indian reservation, over which the State within 
wliose limits the reservation was had no jurisdiction, and there- 
fore was outside the operation of that amendment. Both were 
born under the sovereignty of the United States. The protection 
furnished by the exercise of that sovereignty raised the duty of 
obedience to the laws of the United States in both, the duty of 
protection and duty of obedience being interdependent. The 
subordinate control of the tribe over him did not amount to sov- 
ereignty within its meaning in international law. 

INTEHKATIONAL LAAV RESPECTING CEDED TERRITOUIES. 

Again, it is international law, everywhere admitted and recog- 
nized, that the cession of sovereignty over a country by one na- 
tion to another affects only the political relations of the inhabitants 
of the ceded country, and makes them subjects thereafter of the 
nation receiving the cession; that while the inhabitants of the 
ceded country change their allegiance, their relation to each 
other and their rights of property remain undisturbed. The ces- 
sion of a country does not affect the rights of propert}'. (Vattel, 
book 3, chap. 1:5, sec. 500; United States ?••?. Perchman, 7 Peters, 51; 
Mitchell ?".s. United States, D Peters. 711; Strather r.9. Lucas. 12 
Peters. 410; American and Ocean Insurance Co, vs. Confer, 1 
Peters, 511.) 

Laws, usages, and municipal regulations in force at the time of 
c-'.'^^sion remain in force until changed by the new sovereignty. 
The new sovereignty may deal with theinhabitantsand give them 
what law it pleases, unless restrained by the treaty of cession, but 
until alteration be made, the former law continues, (Calvin's 
Case, 7 Co., 17; Campbell is. Hall, Cowper, '20'.); Mitchell r.s. United 
States, "J Peters, 711; Cross et al vs. Harrison. 1(5 Howard, 101.) 
Cross r.<f. Harrison holds that this international law prevails in this 
country. Tlie Constitution, therefore, can nut. of its own inher- 
ent force, extend itself over such territory. It might be widelj' 
at varianie with tlie law of the ceded territory, Henceit follows 
that the Constitution, with the exception of the thirteenth amend- 
ment, does not extend, <.c projtvio rinorc. into tlie newly ceded 
dependencies, and the contracting nations could properly except 
uneivilized tribes from the rights, privileges, and immunities of 
citizens in the treaty by whicli Alaska was acijuired. Hence the 
8u|)remo (.'ourt properly has lieUl that Congress has plenary 
power in legislating for territories, unless restrained by the stip- 
ulation of the treaty, whetiier that jmwer is derived impliedly 
from the treaty-in;iking ]iower— that the nation must have power 
togiivern what it may lawfully ac(iuire— or from section o of 
Article 1 V of Iho ( 'onstitution. 

The cases liuld that it is immaterial from which source the 

Sower comes. It is plenjiry or unlimited, from whichever source 
HpriiigH. The cases following the Dred Scott doc i. si on refer to 
tills HPction as ;in expression of this power. By it territory is 
treated, not as a part or portion of the United States, but as prop- 
WTl 



15 

erty belonging to the United States, and Contfross is given jHi^nary 
power to dispose of it, which it has no power to do if it consti- 
tutes a portion of the United States covered by the Constitution. 
If it were a part of the United States within the meaning of those 
words as used in the Constitution, on the tundaniental principles 
on which the Government is founded the inhabitants of sucli ter- 
ritory should be clothed with the power of legislation under tho 
Constitution, be represented in Congress, and have a voice in alter- 
ing and amending the Constitution. In whatever light it is 
viewed it is manifest that the Constitution, with tho exception 
named, unaided, does not extend to Puerto Rico and tho Philip- 
pine Islands, and that Congress, with this exception, is clothed 
with plenary power to legislate in regard to them; to make such 
rules and regulations respecting them as it regards needful, con- 
sidering their situation and circumstances, untramraeled by the 
other provisions of the Constitution which secure particular 
rights, privileges, and immunities to citizens of the United States 
whose property these islands are. 

If the Constitution, with tho exception named, does not invade 
these islands of its own force, it is manifest that its other pro- 
visions will not become operative there without an act of Con- 
gress. The treaty did not put them in operation there. It has 
been claimed that Congress by some indefinable process impliedly 
puts them in operation as soon as it enters upon legislation for 
the islands, even without having passed anj' act to that effect. 
In quite a number of instances the Supreme Court has said that 
in legislating for the Territories Congress has plenary power, or 
the combined power of the National Government and of the 
States. Such combined power must be absolute and unlimited, 
the power of any nation over such territories— except in regard 
to allowing slavery— or, in the language of section 3, Article IV, of 
the Constitution: 

Power to dispose of and make all needful rules and re^ilations respecting 
tho territory and other property belonging to the United States. 

The power of the States in enacting laws is not confmed within 
the limits prescribed for the National Government by the Consti- 
tution. It is absolute except in the particulars surrendered to the 
National Government. There are numberless decisions of the 
Supreme Court to this effect on the subject of "due process of 
law" or the " law of the land." In Missouri v. Lewis (lUl U.S., 
22,31) Mr. Justice Bradley says: 

We might go .still further and say, with undoubted truth, that there la 
nothing iu the Constitution to pi-cvent any State from .adopting any system 
of laws or judiciituro it sees fit lor all or aTiy part of its territory. If the 
State of New York, for example, should see fit to adojit tho civil law and its 
methods of procedure for Now York City and the surrouniling counties, and 
tho common law and its methods of procedure for the rest of the State, there 
is nothing in the Constitution of tho United States to prevent its so doing. 

And Mr. Justice Brown, in Holden v. Hardy, (169 U. S., 30G) after 
quoting the foregoing, says: 

Wo have seen no reason to doubt tho soundness of these view.s. In the 
future growth of tho nation, as heretofore, it is not impossible that ('"iigrcss 
may see flt to annex territories whoso jurisprudence is that of the civil law. 
One of the considerations moving to such aiuu'xation might bo tho very fact 
that the territory so annexed should enter the Union with its traditions, 
laws, and systems of administration unchanged. It would 1)0 a narrow con- 
struction of the Constitution to reouiro tliem to abandon these, or to substi- 
tute for a system which renrescnted the growtl; of generations of inhabitants 
a jurisprudence with which they had no previous ac«iuaintanco or sympathy. 

These decisions are forcibly to the point that Congress, in the 
3971 



IG 

exercise of tho conibineil powers of tlif Natirtjial (Tovernment and 
of the States, has uulimited power in legislatiiitj for these islands, 
with the exception of allowing? shivery, and does not thereby im- 
pliedly confer upon their iiiliabitants the other rights, privileges, 
and innnunities seiured to the citizens of the United States by the 
Constitution. Doubtless the citizens of the United States, fully 
imbued with the i)iiiiciples of the Constitution, will see to it that 
no Congress will ever exist which will not confer upon the inhab- 
itants of those islands all the rights, privileges, and immunities 
secured by the Constitution, so far as they are applicable to their 
condition and circumstances. 

Iini.ATIONS OF THK rxiTKI) STATICS TO THESE DEPENDENXIES. 

While, under these views, Congress enters upon the government 
of these dependencies unrestrained by the provisions of the Con- 
stitution, nevertheless it will exercise this power under the obliga- 
tion of a general duty, to be discharged faillifully and honestly for 
the higliest welfare of their inhabitants, and of the inhabitants of 
the nation. Every function of government is a duty so to be dis- 
charged. As applied to Puerto Rico and the Philippine Islands the 
duty is general. It is so left by the treaty. 

RELATIONS TO CmA. 

In regard to Cuba the duty is particular. It is so constituted 
by the resolutions antedating the war .and by the provisions of 
the treaty. The preamble of the joint resolution of L'ougress a\> 

f)roved April 20. 189S. counts upon the abhorrent conditions which 
lave existed in that island for more than three years, shocking to 
the moral sense of the people of the United States, a disgrace to 
Christian civilization, culminating in the destruction of the Maine 
with 'JiKj of its officers and crew, and thereupon it is solemnly re- 
solved, (1) That the people of the island are, and of right ought 
to be, free and inde'pendent. (2) That it is the duty of this Gov- 
ernment to demand, and it does demand, that Spain at once re- 
lin(iuish its authority and government of the island. (8) Author- 
izes the President to use the entire land and naval forces, and to 
call out the militia to enforce the demand. (4) The United States 
disclaims anj- di.sposition or intention to exercise sovereignty, 
jurisdiction, or control over the island except for the pacification 
thereof, and then assorts its determination to leave the govern- 
ment and control of the island to its people. 

These were followed by the act approved April 2"). declaring that 
a state of war had existed between the United States and Spain 
since April 21, and dinctingand empowering tlio President to use 
tlie entire land and naval forces and to call into the service the 
militia of the Unite d States in the prosecution of tlie war. The 
President exercised the power conferred, ol)eyed the direction, 
proso'-uted the war to a snccessful termination, resulting first in 
the jirotmol and tiien in the treaty ratified by tin- Senate, by which 
Spainrelinciuishesher.sovereignfy over Cuba, and the Ignited .States 
announces to ilie world that she is about to occupy and, while the 
occupation continues, she — 

will iissiuiK" 1111(1 <hscli;irk'e tlK'oliliij.itioiis thut iniiy.uiiiU'r intoriintinii.-il law, 
reHult Ironi tfio fu<t nl itH ix-ciiicition for tlit' iirotccUuii of life unci proiJcrty. 

The United States is now in the exercise of such occupation. It 
has fieen claimed that fhe did not take sovereignty over tlie island; 
that on the ndiniiuislmient by Spain it vanished into thin air to 
Bf>mo i)iace tniknown, or, as one eminent writer on international 
law has said, w;is in abeyance until the iniiabitants of the island 
sliould bo in condition to receive and exercise it. Sovereignty is 
»t71 



17 

snpremeorj)aratiiount control ill tliof^ovoiiiiiK'iitof ncountrv. TUe 
United States is now. and lias beon sinco the sif»niiig of the pro- 
tocol, in the oxcrcisoof this control in tlu'Rovornnient of th<' island. 
It has not been a divided control, as sometimes happins in th" con- 
flict of arms. Her control lias been uiKinestioiicd and niidispnted. 
I think tlie I'nited ytates, n]ion the surrend(>r of soverri}j;nty over 
the island by Spain, immediately followin;,' the sigiiin,:,' of the jiro- 
tocol. took sovereignty over the island, not as her own, nor for Ikt 
benelit, nor for the iieople of the I'^nited States, but for the inhab- 
itants of the island, for the specified and ]>articnlar pnrpo.^e of 
pacification of the island. What is meant by the pa:ification of 
the island? It may be difficult to determine. 

Persons and nations may differ in regard to the state of things 
which must exist to have this accomplished. The Cubans may 
say that they are iiacitieii, in a state of peace now. and therefore 
it is our duty to withdraw and allow them to set up sach a gov- 
ernment as they may choose. We may say that pacification nioaiis 
more than absence of a state of war; that, considering the state 
of things that had existed for three or more years, it means until 
the inlialiitants shall have acquired a reliable, stable government. 
Are the Cubans capable of establishing and maintaining a st;i.ble 
government? Who shall de.-ide? If that be the meaning, what 
kind of a government? A monarchy, a desiiotism abliorrent to 
the fundamental principles that have ruled and inspired this 
nation from its origin? Who can tell? Then the announcement 
makes no provision for any return by such government, when 
established, for the expenditures and obligations incurred in prose- 
cuting the war and administering the sovereignty. Is the United 
States to receive such compensation? She became a volunteer in 
the war, and announced herself such volunteer in taking the sov- 
ereignty until pacification is accomplished. As such the United 
States stands to-day before the civilized nations of the world. 
The inhabitants of Cuba are the beneficiaries of this voluntarily 
assumed duty, and when a difference arises between this Govern- 
ment and them, whether the duty has been performed and 
whether this nation is to be compensated for the expense of its 
administration, have a right to arraign this nation at the bar of 
nations and demand that it give account of the stewardship 
winch it voluntarily assumed. The determination of the rights 
of this nation and of the Cubans under this assumed duty may 
involve many nice questions and many difficulties. 

SHOULD THE UNITED STATES EXTEND THESE REI^ATrOXS TO PUERTO RICO 
AND THE PHILIPPINE ISLANDS? 

Yet there are those who earnestly urge that Congress shouUi 
make a declaration tliat the nation holds Puerto Rico and the 
Philippine Islands under the same undefined, yet in a sense par- 
ticular, duty. In my judgment, such a course is beset with com- 
plications and difficulties. By adoiiting it the nation would court 
these and invitethe inhabitants of the islandsto engender perplex- 
ing (luestions and entanglements. Under the treaty the nation 
takes the sovereignty of Puerto Rico and of the Philippine Islands, 
under the general duty to use it in such a manner as Congress may 
judge willbest subserve the highest interests of their inhabitants 
and the inhabitants of this nation. I would announce no other 
duty in regard to them. Many more complications and entangle- 
ments may arise in the discharge of the particular duty to Cuba 
than are likely to arise in the discharge of the general duty to 
Puerto Rico and the Philippine Islands. 

39U-2 



18 

CONGRESS SHOULD ANNOUNCE NO POLICY EXCEPT THE FLAG. 

It is nrsed that this nation should announce the policy of its 
purpose in tlie atlministration of the soverei;?ntj'. The liaj? of the 
nation has boon planted on those islands. That is the emblem of 
its policy, and ever lias been, even when at hali'-mast, mourning 
tlie loss of her sons slain in its defense. The flag never did, and I 
hope never may, represent but one policy. That policy is indi- 
vidual manhood; the right to enjoy religious and civil liberty; 
the right of every man to believe in and worship God according to 
the dictates of his own conscience; the right to stand protected 
equally with everj' other man before the law in the enjoyment of 
freeilo'm, of personal rights, and of property. Let the flag, as the 
representative of these principles, be planted and become domi- 
nant on and over every island and every inhabitant. Noother, no 
belter, policy can be proclauned. In no other way can this Con- 
gress and nation discharge its duty to the people of the United 
States and to the people of the islands. Congress should proclaim 
this policy by its acts and make no attempt to do what it has no 
power to'do— to pledge or limit the action of future Congresses. 
What future Congi-esses shall do is for them to determine and pro- 
claim. It can not be assumed that wisdom will die with the 
present Congress, nor that it is any part of its duty to proclaim 
what future Congresses shall do. Sufficient unto the day is the 
duty thereof. 

CONSENT OF THE INHAUITANTS OF ISLANDS NOT REQUinED. 

If these principles are enforced as far as applicable to the gov- 
ernment of these islands, the inhabitants will bo blessed, whether 
they consent thereto in advance or not. In a representative gov- 
ernment the right to govern is not derived from the consent of the 
governed until they arrive at a stage of advancement which will 
render them capable of giving an intelligent consent. Four-fifths 
of the iiihaliitants of this country have given no consent except 
representative! )•. The consent of women, as a rule, and of minors 
is never required, nor .allowed to be taken. Wives and children 
are assumed to be represented by husbands and fathers. Boys are 
to be educated, trained, and ripened intomanliood before they are 
capable of giving consent. Doubtless the boys of fifteen in this 
country are better i)repared to give an intelligent consent than are 
the inhabitants of those islands. This is not their fault. After 
having lived for more than three hundred years under a govern- 
ment of oppression and practical denial of all rights, it is not 
wonderful that they are not capable of judging how they sliould 
be governed. They are to be tiviined in these primiiiles; first, by 
being ailoweil, under experienced leaders, to put them in practice 
in the .simpler forms of government, and then be gradually ad- 
vanced in their exercise, as their knowledge increases. 

All accounts agree that the administration of justice in the 
i.Hlands through the courts has been a i'arce; that no native could 
establish his rights or gain his cause, liowever righteous, against 
the Spaniards and priests; that therein bribery and every form of 
favoritism and oppression i)revailed. Under such training and 
abuse falsehood an<l deceit have lu'come jirevalent. These most 
di.Hconraging traits of character ( an not bo clianged in a genera- 
tion, and never except by iiure, impartial administration of justice 
throu'„'h the courts, regardless of who may be the parties to the 
controversioH. In my judgment, the people of this nation obtain 
more and clearer knowledge ol their personal and property rights 
3'j;i 



19 

throu.c^li the administration of justice in the courts than from all 
othir sources. 

WHAT ExrERIENCE TE-VmES. 

All experience teaches that the requirrmcnts and impartial 
practice of the principles of civil and religious lilcrty cannot 
.speedily be acquired by the inhabitants, lelt to their own way, 
imder a protectorate by this nation. The e.xporionce of this na- 
tion in governing and endeavoring to civilize tlio Indians teaches 
this. For about a century this nation exercised, in fact, a pro- 
tectorate over the tribes, and allowed the natives of the country 
to manage their tribal and other relations in their own way. 
The advancement in civilization was very slow and hardly per- 
ceptible. During the c oiiiparatively few years that Congrf ss lias, 
by direct legislation, controlled their relations t) each other and 
to the reservations the advancement in civilization has been ten- 
fold more rapid. This is in accord with all experience. The 
untaught cannot become acquainted with the dilMcult problems 
of government and of individual right;?, and their duo enforce- 
ment, without sldllful guides. 

No practical educator would think of creating a body of skilled 
mechanics by turning the unskilled loose in a machine shop. He 
would place there trained superintendents and guides to impart 
information to their untaught brains, and to guide their unskilled 
hands. It is equally true that they would never become skilled 
without using their brains and hands in operating the machines. 
So, too, if this nation would successfully bring the inhabitants of 
these islands into the practice of the principles of religious and 
civil liberty, it must both give them the opportunity to be taught 
in, and to practice them, first in their simpler forms and then in 
their higher application, but under competent and trained teach- 
ers and guides placed over them by this nation. It is equally true 
that the laws and customs now prevailing must neither be pushed 
one side nor changed too suddenly. They must be permeated 
gradually by the leaven of civil and religious lilerty until the 
entire population is leavened. To accomplish this without mis- 
take, in the interest of the people of this nation and of the inhab- 
tants of the islands, is a most difficult task, demanding honesty, 
intelligence, and the greatest care and good judgment. The task is 
rendered much more difficult because the people of the islands 
have hitherto been governed by the application of the direct op- 
posite of these principles, and are composed of great numbers of 
tribes, speaking dilferent dialects and languages, and governed by 
different customs and laws. 

SEPARATE DEPARTMENT OF GOVERNMENT DEMANDED. 

The successful solution of this problem demands accurate 
knowledge of the present conditions of the entire population, and 
of the ditferent classes, of their respective habits, customs, and 
laws. As the principles of civil and religious liberty are gradu- 
ally intermingled with their present customs, habits, and laws, 
changes will be constantly going forward. An intimate knowl- 
edge of these changes will also be necessary for their successful 
government. Hence, as a first step to a successful discharge of 
this duty. Congress should create a department of government, 
charged with the sole duty to become accurately aciiuainted with 
and to take charge of their affairs, and place exact knowledge of 
them before Congress for its guidance. They should not as now, 
be left in charge of departments overloaded and overworked. 

3971 



LllJKHKIf Uh CUNOKt:>b 



013 717 906 4 



20 



AITiiINTMF.XTS Ml'ST i(E MAI)K NkNPOI.ITICAL. 

Tlip second step to be taken is to remove all civil appoiiitimiits 
in the islands from tlie realm of ])olitics. The nation will nttorly 
fail in the discharKe of its duty if the islands are made political 
footballs subject to chantje in government with every political 
change in the Administration. Tlie administration of the sov- 
eignty must 1)6 intelligent, honest, and uninterrui)ted. A faith- 
ful, intelligent man, with a full knowledge of the situation, must 
nut be displaced to give place to one ignorant of the conditions, 
however capable otherwise. The duty rests upon the entire na- 
tion. It must be discharged for the interest of the whole nation. 
There are honest, capable men in every i)olitical party. These 
Bhould be sought out and given jdace in the administration of 
this sovereignty, as nearly as may be in jiroportion to the 
strength of tlie several political parties in the nation. Then, when 
there is a political change in the Aumiuistration. there wil be no 
inducement to make extensive changes in the administrative ap- 
pointees (jf the -overeiguty. 

COXCI.ISIOX. 

Diflicult ;e- is tlie administration of this sovereignly, if honistiy 
and intelligently undertaken such adiiiistratinn. 1 believe, will be 
beneficial both to the people of this nation and to tl;e inhabitants 
of the islands. Difficulties which have couie as these have como— 
unsought— honestly and faithfully encountered, bring wisdom 
and strength. The struggle for nearly a century in this nation 
over slavery gave wonderful wisdom, strength, and clearness 
of in>-ight into the groat jaunclples which the nation is now called 
ujxm to apply to these oppressed islands. Stagnation is decay 
and ultimate death. Honest struggle, endeavor, and discussion 
bring light, growth, develojauent, and strength. The primary 
object to bo attained by the discharge of this duty is the elevation 
of the inhabitants of the islands physically, mentally, and mor- 
ally; to make them industrious, honest, intelligent, liberty- 
loving, and law-abiding. This end attained, the secondary object, 
commercial and material growth among them and among the sur- 
ronmling millions, will sr.rely follow. The first unattained, the 
second, at best, will be spasmodic and of little worth. 

The intelligent, thoughtful observer sees more in nature, and in 
the ordering of the atlairs of this world, tlian the unguided idans 
and devices of men and nations. For him the wisdom of the 
Eternal shajn's tlie atT.iirs of men and of nations.'sometiuies even 
against their selfish plans and desir.s. For such. His hand i)lanted 
tJii- Hi'e<l (*f individual niauhood. and for centuries watched over 
and cared for it in its .slow gr< wth amidst infinite sufferings, 
Htrui;gles, and conflicts, until, at length. i)lanted on these .shores, 
not entirety in its jjurity, but at last brought to full fruitage in 
the terrible struggles and conflicts wJiicli ended with the civil 
war. Undi r Him, no man, no n:ition. lives to itself alone. If it 
has received much, much must it give to the le.ss favored. Under 

His •'-'!■' ! i. > v.. the discharge of this great and diflicult 

dm lit, to the lot of this nation. Then let the 

nati . which the Ituler of men and nations has 

Iilaci'U upon tl, gu liu'svard in an honest, un.selfish. intelligent, 
onrncht endeavor to discharge it for the highest interest of the 
nation, and of the islands, in tiie fear and under the direction of 
thf Siipffuif Uu'.cr, wlio guided tlie falhc-rs and founders; and the 
unt.on will not, can not, encounter failure. 



ani 



O 



